A-18120, MAY 2, 1927, 6 COMP. GEN. 712

A-18120: May 2, 1927

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EXPERT - TRAVEL AND SUBSISTENCE EXPENSES AN "EXPERT" EMPLOYED UNDER THE DEPARTMENT OF JUSTICE IN CONNECTION WITH GOVERNMENT LITIGATION IS. AN OFFICER OR EMPLOYEE OF THE UNITED STATES AND HIS TRAVEL AND SUBSISTENCE EXPENSES ARE LIMITED BY THE LAWS APPLICABLE TO OFFICERS AND EMPLOYEES GENERALLY. MAY BE REIMBURSED ONLY FOR HIS ACTUAL TRAVEL EXPENSES IN GETTING TO AND FROM THE PLACE WHERE HIS SERVICES ARE REQUIRED AND FOR HIS SUBSISTENCE EXPENSES ACTUALLY INCURRED IN CONNECTION WITH SUCH SERVICES. BEFORE THIS TRAVEL WAS MADE THE MATTER WAS TAKEN UP WITH THE NAVY DEPARTMENT WITH A VIEW TO HAVING COMMODORE STAHL DETAILED TO THIS DEPARTMENT TO ASSIST GOVERNMENT COUNSEL IN THE CASE "NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO.

A-18120, MAY 2, 1927, 6 COMP. GEN. 712

WITNESSES, EXPERT - TRAVEL AND SUBSISTENCE EXPENSES AN "EXPERT" EMPLOYED UNDER THE DEPARTMENT OF JUSTICE IN CONNECTION WITH GOVERNMENT LITIGATION IS, DURING THE TIME OF HIS SERVICE IN THAT CAPACITY, AN OFFICER OR EMPLOYEE OF THE UNITED STATES AND HIS TRAVEL AND SUBSISTENCE EXPENSES ARE LIMITED BY THE LAWS APPLICABLE TO OFFICERS AND EMPLOYEES GENERALLY. A RETIRED COMMODORE OF THE NAVY IN RECEIPT OF RETIRED PAY, WHEN EMPLOYED UNDER THE DEPARTMENT OF JUSTICE AS AN "EXPERT" IN CONNECTION WITH GOVERNMENT LITIGATION, MAY BE REIMBURSED ONLY FOR HIS ACTUAL TRAVEL EXPENSES IN GETTING TO AND FROM THE PLACE WHERE HIS SERVICES ARE REQUIRED AND FOR HIS SUBSISTENCE EXPENSES ACTUALLY INCURRED IN CONNECTION WITH SUCH SERVICES, WITHIN THE LIMITATIONS PRESCRIBED IN THE SUBSISTENCE EXPENSE ACT OF 1926, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, MAY 2, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 11, 1927, AS FOLLOWS:

THIS OFFICE HAS BEFORE IT FOR SETTLEMENT SUPPLEMENTAL CLAIM OF COMMODORE A. W. STAHL, RETIRED, FOR TRAVELING EXPENSES FROM WASHINGTON, D.C., TO NEWPORT NEWS, VA., AND RETURN, DURING THE PERIOD FROM MARCH 7 TO 16, 1927. BEFORE THIS TRAVEL WAS MADE THE MATTER WAS TAKEN UP WITH THE NAVY DEPARTMENT WITH A VIEW TO HAVING COMMODORE STAHL DETAILED TO THIS DEPARTMENT TO ASSIST GOVERNMENT COUNSEL IN THE CASE "NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO. V. UNITED STATES, NOS. 30372, 30373, 30374, 30375.' THAT DEPARTMENT ADVISED THAT INASMUCH AS COMMODORE STAHL HAD BEEN RETIRED BECAUSE OF AGE HE COULD NOT BE DETAILED TO THIS DEPARTMENT. THE MATTER WAS THEN TAKEN UP WITH COMMODORE STAHL PERSONALLY WITH THE RESULT THAT THE DEPARTMENT, UNDER DATE OF MARCH 3, AUTHORIZED HIM TO MAKE THE TRAVEL IN QUESTION. THE TRAVEL ORDER READS AS FOLLOWS:

"YOU ARE HEREBY AUTHORIZED AND DIRECTED TO PROCEED TO NEWPORT NEWS, VA., ON OR ABOUT MARCH 7, 1927, FOR THE PURPOSE OF RENDERING TECHNICAL ASSISTANCE TO GOVERNMENT COUNSEL DURING THE TAKING OF TESTIMONY IN THE ABOVE ENTITLED CASES, WHICH IS CONTEMPLATED TO BE INTRODUCED BY THE PLAINTIFF BEGINNING TUESDAY, MARCH 8, 1927, AT 10 O-CLOCK IN THE FORENOON, AT ITS PLANT LOCATED IN NEWPORT NEWS, VA.

"IT IS ALSO EXPECTED THAT YOU WILL BE CALLED AS AN EXPERT WITNESS FOR THE UNITED STATES, AND THAT THE INTRODUCTION OF YOUR TESTIMONY WILL BEGIN ON MONDAY, MARCH 14, AND WILL BE COMPLETED IN AMPLE TIME TO PERMIT YOU TO EMBARK UPON YOUR CONTEMPLATED EUROPEAN TRIP, AS SCHEDULED.

"YOUR TRANSPORTATION AND OTHER EXPENSES WILL BE PAID, IN CONFORMITY WITH THE RULES AND REGULATIONS OF THIS DEPARTMENT.'

IN 3D COMP. (DEC.) 588, IT WAS HELD THAT THE MILITARY STATUS OF OFFICERS OF THE ARMY DID NOT CHANGE BY AN ASSIGNMENT TO DUTY WITH A CIVIL DEPARTMENT OF THE GOVERNMENT. OFFICERS OF THE ARMY AND NAVY, WHO ARE DETAILED FOR DUTY WITH A CIVIL BRANCH OF THE GOVERNMENT ARE ENTITLED TO THE SAME TRAVEL ALLOWANCE THAT THEY ARE ENTITLED TO WHEN ASSIGNED TO DUTY IN THE MILITARY OR NAVAL SERVICE AND NO OTHER, UNLESS SPECIAL PROVISION IS MADE BY STATUTE FOR OTHER TRAVEL ALLOWANCE (1 COMP. GEN. 98, 2 ID. 373, 2 ID. 635). UNDER EXISTING STATUTE OFFICERS OF THE THE ARMY AND NAVY RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF $0.08 PER MILE, EXCEPT IN SPECIAL CASES OF REPEATED TRAVEL, IN WHICH CASES THE ALLOWANCE FOR ACTUAL AND NECESSARY EXPENSES FOR SUBSISTENCE ARE NOT TO EXCEED $7.00 PER DAY, OR, IF THE TRAVEL ORDER SO PRESCRIBES, A PER DIEM IN LIEU OF SUBSISTENCE IN THE AMOUNT OF $6.00.

ARMY AND NAVY OFFICERS TRAVELING TO TESTIFY ON BEHALF OF THE GOVERNMENT MAY BE ALLOWED ONLY ACTUAL AND NECESSARY EXPENSES, STATED IN ITEMS, AND SWORN TO AS PROVIDED BY SECTION 850 OF THE REVISED STATUTES. NO MILEAGE OR OTHER COMPENSATION MAY BE ALLOWED, NOTWITHSTANDING SPECIFIC LEGISLATION WHICH ALLOWS NAVAL OFFICERS $0.08 PER MILE IN LIEU OF TRAVELING EXPENSES (19 COMP. DEC. 752).

HOWEVER, THE COMPTROLLER OF THE TREASURY, IN HIS DECISION OF JUNE 10, 1912 (18 COMP. DEC. 966) HELD THAT A RETIRED ARMY OFFICER WHO IS CALLED TO TESTIFY BEFORE A CIVIL COURT IS ENTITLED TO LAWFUL FEES AS A WITNESS (PER DIEM AND MILEAGE) AND NOT TO ACTUAL EXPENSES AS PROVIDED BY SECTION 850 OF THE REVISED STATUTES.

THE COMPTROLLER OF THE TREASURY, IN HIS DECISION TO THE ATTORNEY GENERAL OF AUGUST 31, 1920 (27 COMP. DEC. 220) HELD THAT INASMUCH AS THE PAY OF A RETIRED OFFICER OF THE ARMY IS FIXED BY LAW, PAYMENT OF ANY ADDITIONAL COMPENSATION TO SUCH OFFICERS, WHILE RECEIVING THE RETIRED PAY, FOR SERVICES AS AN EXPERT WITNESS ON BEHALF OF THE UNITED STATES WAS PROHIBITED BY SECTION 1765, REVISED STATUTES. THIS STATUTE WAS MODIFIED BY THE ACT OF MAY 31, 1924 (43 STAT. 245) (TITLE 5, SEC. 63, CODE). THESE STATUTES ARE NOT PERTINENT TO THE QUESTION HEREIN PRESENTED, INASMUCH AS NO COMPENSATION IS TO BE ALLOWED, NOR IS IT CLAIMED BY COMMODORE STAHL.

THE QUESTIONS NOW PRESENTED ARE:

(1) IS THE CLAIMANT ENTITLED TO REIMBURSEMENT OF ACTUAL EXPENSES OF TRAVEL AND SUBSISTENCE, OR TO MILEAGE AT THE RATE OF $0.08 PER MILE?

(2) IF HE IS ENTITLED TO ACTUAL EXPENSES OF TRAVEL AND SUBSISTENCE, IS THE ALLOWANCE THEREOF GOVERNED BY NAVY DEPARTMENT REGULATIONS OR BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS?

(3)WHAT ALLOWANCES FOR TRAVELING EXPENSES AND SUBSISTENCE WOULD AN ARMY OR NAVY OFFICER BE ENTITLED TO HAD HE BEEN RETIRED BECAUSE OF DISABILITY AND NOT AGE? (SEE 43 STAT. 245.)

INASMUCH AS COMMODORE STAHL WAS NOT ON ACTIVE DUTY, THE PERTINENCY OF THE DECISIONS CITED IN THE SECOND AND THIRD PARAGRAPHS OF THE APPLICATION (3 COMP. DEC. 588; 19 ID. 752; 1 COMP. GEN. 98; 2 ID. 373; ID. 635) RELATING TO OFFICERS ON THE ACTIVE LIST OF THE ARMY OR NAVY IS NOT APPARENT; NOR DOES IT APPEAR THAT THE DECISION (18 COMP. DEC. 966) CITED IN THE FOURTH PARAGRAPH OF THE APPLICATION IS FOR CONSIDERATION AS IT MERELY INVOLVED THE QUESTION OF A RETIRED ARMY OFFICER'S RIGHT TO WITNESS FEES WHEN SUBPOENAED AS A "WITNESS.'

A "WITNESS" MAY BE COMPELLED TO TESTIFY CONCERNING FACTS WITHIN HIS KNOWLEDGE BUT AN "EXPERT" IS NOT NECESSARILY AND PROPERLY A WITNESS; HIS OFFICE MAY BE, AS WAS COMMODORE STAHL'S IN THE MATTER PRESENTED, TO AID COUNSEL IN THE PREPARATION OF THE CASE AND IN THE CROSS EXAMINATION OF WITNESSES AS WELL AS TO TESTIFY AS TO HIS OPINION OR OPINIONS. IT HAS BEEN HELD, THEREFORE, THAT THE SERVICES, SKILL, OR KNOWLEDGE OF AN "EXPERT" CAN NOT BE ACQUIRED WITHOUT HIS CONSENT AND WITHOUT JUST COMPENSATION (IN RE MAJOR WILLIAM SMITH, 24 CT.CLS. 209); BUT, IT HAS ALSO BEEN HELD THAT AN "EXPERT" WHILE EMPLOYED ON BEHALF OF THE GOVERNMENT IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE LAWS AFFECTING TRAVELING AND SUBSISTENCE EXPENSES OF OFFICERS AND EMPLOYEES OF THE GOVERNMENT GENERALLY. (27 COMP. DEC. 220--- CITED IN 5TH PAR. OF APPLICATION; ID. 807.)

IT MUST BE HELD, THEREFORE, IN ANSWER TO QUESTIONS (1) AND (2) OF THE APPLICATION, THAT UPON THE PRESENTATION OF PROPER VOUCHERS, COMMODORE STAHL MAY BE REIMBURSED HIS ACTUAL TRAVEL EXPENSES AND, FOR THE PERIOD HIS SERVICES WERE IN FACT REQUIRED IN AN "EXPERT" CAPACITY, HIS ACTUAL EXPENSES FOR SUBSISTENCE, SUBJECT TO THE LIMITATIONS PRESCRIBED IN THE SUBSISTENCE EXPENSE ACT OF 1926 AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

THE THIRD QUESTION PRESENTED IS HYPOTHETICAL AND SEEMS TO ARISE FROM THE INFERENCE DRAWN IN THE FIFTH PARAGRAPH OF THE APPLICATION THAT SECTION 1765 OF THE REVISED STATUTES HAS BEEN MODIFIED BY THE ACT OF MAY 31, 1924, 43 STAT. 245, TO EXCEPT FROM ITS PROVISIONS AN OFFICER RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY.

THAT ACT HAS NOT BEEN SO UNDERSTOOD IN THIS OFFICE, ITS LANGUAGE SEEMING CLEAR TO THE EFFECT THAT IT IS APPLICABLE ONLY TO THOSE OFFICERS RETIRED FOR THE INJURIES OR INCAPACITIES SPECIFIED WHO OTHERWISE WOULD BE SUBJECT TO THE PROHIBITION CONTAINED IN SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, VIZ, THAT NO PERSON WHO HOLDS AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF $2,500 SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW.

THE ANSWER TO THE THIRD QUESTION PRESENTED MUST BE THAT AN ARMY OR NAVY OFFICER RETIRED FOR PHYSICAL DISABILITY OR OTHERWISE IS ENTITLED TO REIMBURSEMENT OF TRAVELING EXPENSES AND SUBSISTENCE UPON THE BASIS INDICATED ABOVE WHEN EMPLOYED AS AN "EXPERT" IN CONNECTION WITH GOVERNMENT LITIGATION.